Manning, Assange, and the Espionage Act

The coming week will mark the one-year anniversary of an unusual chapter in the unfolding WikiLeaks saga: the naming of Bradley Manning, a young military-intelligence analyst and Private First Class in the United States Army, as the source of some of the most spectacular classified leaks in this country’s history. Manning’s role as a WikiLeaks source, reported first at Wired.com, emerged from encrypted online confessions that he apparently made to Adrian Lamo—a former hacker who was secretly recording those confessions, and who later gave them to federal authorities and also made them public. By the time Wired.com published its story, on June 6, 2010, Manning had descended into a labyrinth of military detention, where he has remained (at first, for more than a month without charge). Very few people have been able to talk to him, and his personal defense has not been heard.

Based upon the encrypted confessions, Manning is thought to be the source of all the major WikiLeaks revelations in the past year: the “Collateral Murder” video that I wrote about for The New Yorker last summer; the Iraq War Logs and the Afghan War Diary; the State Department cables (which are still being published); and most recently a tranche of files from Camp Delta, at Guantánamo Bay. In contrast, Manning’s initial charge sheet, which was finally issued in July, was more modest in its scope. The military accused him of illicitly downloading the “Collateral Murder” video from a classified network, and giving it to an unauthorized person (presumably from WikiLeaks). It accused him of doing the same with about fifty cables. The only “mass leak” mentioned in the document is one involving “more than 150,000 diplomatic cables,” but the military did not accuse Manning of giving them away—just obtaining them unlawfully. This March, however, the military redrafted the charge sheet, and Manning is now formally accused of doing just about everything that he had confessed to doing (and, perhaps, more) in the chat logs.*

In the year that this country has been discussing Bradley Manning, a lot of talk has been devoted to his relationship with Julian Assange, the founder and editor-in-chief of WikiLeaks. This is because the Obama Administration has suggested that it is not content to prosecute Manning alone, but rather is seeking to do so in combination with other potential defendants, specifically Assange, who (the argument goes) may have worked with Manning as an accomplice. This is in no way an easy legal case to make. Manning appears to have broken a very clearly defined set of laws. He may have been driven by recklessness; he may have been driven by morality— by the belief that he was revealing the inner mechanics of unjust policy. But whatever his motivation he seems to have made a rational choice: the public benefit of releasing the material was of greater value to him than the obvious personal legal jeopardy.

As simple as Manning’s indictment would appear to be, the legal case against Assange, if there even is one, is murky, with potentially lasting and harmful repercussions to civil liberties in this country. Assange did not obviously break any laws by publishing the leaks that were provided to him. Nevertheless, the Obama Administration has expressed interest in prosecuting him under the Espionage Act, and, if reports about a sitting grand jury convened in Virginia to weigh the matter are true, it may be in the midst of pursuing just such a case. As Jane Mayer noted in The New Yorker last week, the act was designed to prevent “classic espionage” and not the release of classified material in a news context. An Espionage Act indictment against Assange would be unprecedented, and could erode freedoms that reporters enjoy during their normal work of cultivating sources in government. I, like other journalists, oppose the idea entirely. The law should not be invoked.

Still, at least publicly, the whole possibility of a case against WikiLeaks has largely come to turn on a single point of fact: did Assange or close associates communicate with Manning? Establishing such a link is a necessary step in trying to prove that there was a conspiracy. Assange has been asked about this, and he has given variations of the same answer. He told George Stephanopoulos on ABC, last year,

I had never heard of the name Bradley Manning before it was published in the press. Wikileaks’ technology [was] designed from the very beginning to make sure that we never know the identities or names of people submitting us material. That is, in the end, the only way the sources can be guaranteed that they remain anonymous, as far as we are concerned.

Statements like this may well be true, but they do not address the central question. In the anonymous world of Internet communications, it is possible not to know the name of someone, and still communicate directly with him. Assange himself has used aliases: as a teen-ager, he was known in cyberspace as Mendax.

This January, there were reports that U.S. investigators “could detect no contact between Manning and Assange.” That was surprising. Manning’s confessions to Lamo make explicit references to direct communications between him and WikiLeaks. At one point, while trying to answer a question, Manning writes, “I’ll have to ask Assange.” In another burst of short notes, he says:

(2:04:29 PM) im a source, not quite a volunteer(2:05:38 PM) i mean, im a high profile source… and i’ve developed a relationship with assange… but i dont know much more than what he tells me, which is very little(2:05:58 PM) it took me four months to confirm that the person i was communicating was in fact assange

Some people doubt the veracity of these logs. I find this aspect of them to be consistent with what I know and what is reasonable. For a long time now, a compelling bit of corroborating evidence in them has been hidden in plain sight. In May of last year, my piece about WikiLeaks was making its way through the last stages of production at The New Yorker. It was being edited and fact-checked; final touches were being added. I did not interview Manning for the article; nonetheless, while we were working on the piece, he wrote to Lamo on May 25th and said, “new yorker is running 10k word article on wl.org on 30 may, btw.” This turned out to be a dead-on prediction. But how could he have known specifics about our piece before we had published it? The answer is pretty clear: someone involved in WikiLeaks, or an intermediary, told him.

In the past year, I thought about relaying this little observation in a blog post and have refrained, somewhat out of fear of being subpoenaed or otherwise assisting the Justice Department in a case that I profoundly don’t believe in. For a week, I lived in “The Bunker” in Iceland with Assange and Rop Gonggrijp, a Dutch activist who helped in the making of “Collateral Murder,” and when their personal records, along with those of Birgitta Jónsdóttir, an Icelandic parliamentarian who was also there, became the target of a federal investigation, I feared that mine would be, too. After all, from my New Yorker story it is obvious that I was witness to the making of the “Collateral Murder” video. But I now suspect that I was spared by the same double standard that makes WikiLeaks the subject of a criminal inquiry, and not the New York Times or other papers that have published classified material obtained by WikiLeaks (and from elsewhere) in large volumes. I was the journalist in the room.

In truth, the argument against an Espionage Act prosecution of Assange should not be built upon a denial that he conversed with Manning—that is, it should not be a fact-dependant argument—but rather should stand on principle. It should embrace the notion that they communicated, whether directly, or through an intermediary, or both, because their ability to communicate is exactly what requires protecting. Journalists should be able to talk with sources without fear that they will be “conspirators” to criminality, whether the subject is a NASA shuttle failure or Navy SEALs on a classified raid in Abbottabad. The source typically assumes all of the risk when choosing to reveal information, and must decide if violating the law is worth it. Extending that burden to journalists could have a chilling effect that is larger than any single leak. The Supreme Court appeared to recognize this in its Pentagon Papers ruling. “The responsibility must be where the power is,” Justice Potter Stewart wrote. And the power, he observed, clearly resides in government.

Last year, on NPR, Floyd Abrams, who defended the Times in the Pentagon Papers case, argued that Assange “has gone a long way down the road of talking himself into a possible violation of the Espionage Act”—implying, as others have, that WikiLeaks is not journalism, and as a result should not be judged by the standards of the First Amendment. Abrams apparently had in mind a line from some very early internal WikiLeaks correspondence that expressed the belief that leaks could “bring down many administrations that rely on concealing reality—including the US administration.” Is that really a criminal sentiment? How many Tea Party leaflets express the hope that the Obama Administration will come toppling down? In 2006, when The Nation called for the impeachment of President Bush on its cover, should the magazine have been treated as criminally suspect? What if its story had made its case by employing leaked classified intelligence on the killing of civilians in Iraq?

One can find a lot of garbled stuff in Assange’s early writings: some of it no more fully formed than thought scribbles, some of it laced with bravado or anger, some of it preoccupied with information warfare rather than the modes of conventional journalism. But in their essence the ideas are shaped around an uncontroversial belief that greater institutional transparency is a good thing, and that technology can advance that aim in radical ways. “Secrecy in government is fundamentally anti-democratic”—that quote isn’t from Assange; it’s from a concurring opinion that Justice William Douglas wrote in the Pentagon Papers case, but it is a fairly good distillation of the WikiLeaks philosophy. At the same time, there is a difference between an organization’s animating principles and how it is managed, and WikiLeaks has not always been run well. Assange is growing much more careful and sophisticated in his editorial decisions, but an observation that Steve Coll made in this magazine last November still holds true today: “If the organization continues to attract sources and vast caches of unfiltered secret documents, it will have to steer through the foggy borderlands between dissent and vandalism, and it will have to defend its investigative journalism against those who perceive it as a crime.”

The distinction between the WikiLeaks ideal and its management has become an important, if latent, feature of the debate about Assange. But the First Amendment’s protections are not confined to any particular standard of quality in journalism, and not even to journalism as a whole. They extend in various forms to political speech, to religious speech, to poorly articulated speech, and to speech that may interfere with policy, even ongoing military operations. (Did any WikiLeaks revelation have a greater impact on continuing military operations than Rolling Stone’s recent profile of General Stanley McChrystal?) Critics of the “Collateral Murder” video—the centerpiece of the original Manning charge sheet— have argued that it is a highly biased production, not an even-handed piece of reporting. So what if it is? The video, a polemic, builds its argument by drawing the viewer’s attention to details that Assange believed to be newsworthy in the raw, historical, footage that he had obtained. In that respect, wasn’t he acting like an editor, or like any columnist?

It is possible to accept the fact that massive database leaks, such as the Iraq War Logs and the Afghanistan Diaries, present a worrisome development for people in government who require a certain amount of secrecy to function. Technology makes such leaks more readily possible on a scale that is new, and the technology may introduce a qualitative difference in how we must judge such things. But the government is not currently helpless in its ability to prosecute vast database leaks, or to prevent them by non-judicial means—for example, by simply taking better care of documents. Bradley Manning’s detention at Fort Leavenworth is a good example of the power that the military can leverage. Some of Manning’s defenders seem to believe that he should not be prosecuted at all, but the government has every right to make its case that he broke the law, and he has every right to defend himself in his upcoming court-martial. Sometime soon, hopefully, we will all get a chance to hear what he has to say.

*The original version of this blog post only referred to the contents of the July charge sheet. I’ve corrected that, and the number of days he went without being charged.